Greg Barnhisel on Without Copyrights: Piracy, Publishing, and the Public Domain

What exactly is "piracy" in the digital age?

“PIRACY,” the newly created National Intellectual Property Rights Protection Coordination Center (IPR Center) informs DVD viewers, “is not a victimless crime.” Setting aside the fact that the IPR Center and its partners in the FBI and Department of Homeland Security target this message at precisely the wrong audience — those who’ve chosen to purchase or rent a DVD — the campaign begs a couple of questions. Is this “piracy” actually a “crime”? And more importantly, what exactly is “piracy”?

While content-industry trade groups like the Recording Industry Association of America (RIAA), Motion Picture Association of America (MPAA), and Association of American Publishers (AAP) would doubtless like to take credit for popularizing the term to mean “using creative products without the permission of the creator or rights holder,” “piracy” has meant that for centuries, as Robert Spoo points out in his new book Without Copyrights: Piracy, Publishing, and the Public Domain (Oxford). But it’s never been so simple, particularly in the United States, long a holdout from international copyright norms. “Piracy” is always a term of rhetoric, suggesting a legal force that it frequently does not have; the word was and is a tool to sway the public and lawmakers. And even as their copyright protections were dramatically expanded in the late 20th century, rights holders sought to broaden the definition of “piracy” and concomitantly shrink the public domain, that ocean of content free for all of us to use.

In Without Copyrights,Spoo provides a deeply researched case study of the complicated American copyright situation surrounding the great literary landmark of the 20th century, James Joyce’s 1922 novel Ulysses. He shows that lax and fuzzy copyright laws in the US created a large and fertile public domain that infuriated writers, benefited readers, and provided publishers an opportunity for informal self-governance. But most importantly for the current American debate about intellectual property, Spoo makes clear that “piracy” has never been a clear-cut concept. Rights holders like to define “piracy” as any act of which they disapprove, even when — as with unauthorized publication of Ulysses in the US, or sampling of funk records in 1980s rap recordings, or uploading clips from TV awards shows to YouTube — those acts are expressly or plausibly legal. In part by using loaded terms like “piracy” to influence legislators and law enforcement agencies, rights holders try, and recently have succeeded, in then expanding the legal meaning of those terms and contracting the cultural commons.

The context Spoo ably recreates, though, is the legal environment governing American publishing from the early 19th century through the post-World War II period. In the 19th century, the so-called “reprint industry,” which mined previously published books, largely British, dominated American publishing. And while reprinters bore most of the fixed costs facing any publishing concern (labor, materials, advertising, distribution) they had one great competitive advantage: they didn’t have to pay their authors. Until 1891, US law extended copyright protection only to works by American citizens, so these reprinters made a business model out of selling British books, generally without ever contacting (much less entering into an agreement with) their authors. It’s hard to think of a more obvious example of “piracy” than this, and authors from Dickens to Wilde fumed about their vast lost revenue. A familiar anecdote describes Dickens fans, desperate to find out whether Little Nell was dead, storming the New York wharves as ships laden with the latest issue of Master Humphrey’s Clock docked. Some of those impatient fans, though, were probably publishers’ agents, frantic to grab their copies, get back to their presses, and be the first ones to market with a “pirated,” but entirely legal, American edition of the novel.

Frustrating as it was to aggrieved British authors, the law had some justification. The US was a large but largely under-booked nation in the early 1800s. In keeping with the spirit of the US Constitution’s Copyright Clause, which emphasizes that the real goal of copyright is not first and foremost the protection of an author’s rights but the promotion “of Science and useful Arts,” the law subsidized the production and dissemination of books. A lot of books. A lot of cheap books that would, Congress hoped, spread across (and educate) our widely dispersed and unschooled nation. And while the 1790 Copyright Act assured American citizens of copyright protection, ironically it did little to cultivate a native literary culture: why sign up an American author and pay royalties when one could print a guaranteed seller like Tennyson or George Eliot instead, and pocket the difference? As a result, British literature dominated American reading through the 19th century (with notable exceptions such as Uncle Tom’s Cabin, which was, in a neat turnabout, widely “pirated” in Britain).

If anyone could publish any British author, how, then, did the American publishing industry not consume itself through self-destructive cost-cutting? A professor at the University of Tulsa College of Law, Spoo is sensitive to the important distinctions between common law, legislated law, and informal community norms that carry the force of law, and thus identifies “trade courtesy” as the mechanism that saved publishing houses from bankrupting themselves through competitive discounting. These “pirate” publishers behaved more like a genteel cartel than like bootlegging gangsters, Spoo makes clear. A publisher would make it known among the community of reprinters that he intended to publish a given author or a book. Other publishers, parties to this informal gentlemen’s agreement, respected that publisher’s claim to that title, and renegades were punished through public shaming (manifested in advertisements that questioned the quality or authenticity of their texts) or, in the cases of particularly obstinate transgressors, commercial retaliation. Like Wal-Mart meeting Main Street, colluding reprinters would print their own editions of a violator’s books, pricing them ruinously low or even at a loss in pursuit of the greater good of the stability of the industry. At this time, in fact, while British authors referred to the entire American industry as “pirates,” publishers used the word internally to describe those members of their community who deviated from norms of trade courtesy.

The landscape changed a bit with the 1909 Copyright Act, but not much. This law extended copyright protection to foreign authors, but only if their books were actually manufactured in the US. (Unsurprisingly, the typesetters, printers guilds, and printing companies ghostwrote this legislation. Plus ça change.) A book published abroad had to be printed here within 60 days to qualify for copyright protection. Failing that, it was fair game. So why didn’t writers just publish first in the US and then export back to Europe? The problem was cost: publication of small-market books and magazines was financially unfeasible, because high American printing costs (a result of this protectionist law) made printing in the US, and thus receiving copyright protection, impractical.

The difficulty of obtaining American copyrights enraged many modernist authors. Ezra Pound proposed his own law in 1918 that would, he felt, achieve the twin goals of allowing authors to profit from their creations and ensuring the wide distribution and availability of creative and scientific works. Dismissing the constitutional requirement that copyright laws must be granted “for limited Times,” Pound proposed perpetual copyright — that is, copyright would never expire, and nothing could ever pass into the public domain. This is probably not surprising, coming from a man trying to scrape out a living as a writer. However, Pound also insisted on a kind of “compulsory license” that would kick in after a period of time. That is, if a work had gone out of print, or the rights holders were uninterested in pursuing publication, any publisher had the right to print (or translate) that work even without the rights holder’s acquiescence, with the stipulation that the author or estate receive a set royalty. Authors and their heirs would always profit from their works, but at the same time they could never prevent the dissemination of those works. It’s a nifty squaring of a difficult circle; unfortunately, it’s unconstitutional.

Pound’s ideas then lead us to Ulysses, a work for which he had occasionally served as an American agent. Spoo avoids rehashing the labyrinthine history of the work’s publication except as it bears upon his larger point: that Ulysses was fair game, public domain, in the US as of April 3, 1922, 60 days after Sylvia Beach of the Paris bookstore Shakespeare and Company published the novel on Joyce’s 40th birthday. The book was a proven sensation with an affluent and motivated market, and although composition and printing would be expensive, it could be priced at a premium. Unfortunately, as published in serial form in the New York literary magazine The Little Review,the work had been pronounced obscene in 1921 by the New York Court of Special Sessions, and federal customs officers had been instructed to destroy copies of the novel entering the US. Publishers, naturally, were unwilling to take a chance on the book, but what worried Joyce and his agents more was that at whatever time the ban was lifted, anyone might produce an edition of the novel, even without Joyce’s consent. To solve the copyright problem, Joyce’s American publisher B. W. Huebsch proposed to Joyce that he oversee a lightly expurgated version of Ulysses in the US so as to obtain copyright. The choice, he explained to the Irish writer, was between 1) making his own decisions about what to bowdlerize, and then owning his own copyright and earning royalties on Ulysses, or 2) allowing a “pirate” publisher to publish the novel in a version that the publisher would censor himself (because the original version could not be sold), thus giving up both control of the text and ownership of the book. But, a martyr to artistic purity, Joyce declined both options.

Enter the Joyce acolyte and aspiring bad-boy publisher Samuel Roth. Roth ran a magazine called Two Worlds,which mined — I intentionally avoid using the word “plundered” here to reemphasize that this was not theft — European anthologies and avant-garde magazines such as transition and Transatlantic Review for content, which also included erotica and Roth’s own, sometimes bizarre, writing. Roth took full advantage of lax American copyright laws and played loose even with domestic contributors, who generally received payment only after an issue turned a profit (and even then it frequently took some strongly worded letters). Roth used the great modernists as brand names to sell his product. He boasted on the masthead that Pound, Ford Madox Ford, and Arthur Symons were contributing editors; in truth, only Pound had actually agreed to do this, and that had been years previously. Without Joyce’s permission or knowledge, Roth reprinted excerpts from Finnegans Wake, then called “Work In Progress,” that had already appeared in other magazines. Then, in July 1926, he launched a new magazine (Two Worlds Monthly) in which he promised to finish the job that the Little Review had been unable to complete. He announced that he would publish in the US, for the first time in its entirety, Ulysses.

Two Worlds Monthly ran for 11 issues until going under, and Roth only managed to get through the “Oxen of the Sun” episode, taking him barely halfway through the book, 25 pages past the point where the Little Review had been forced to desist. But while he, unlike Little Review editor Margaret Anderson, managed to avoid an indictment for obscenity, Roth didn’t manage to stay out of a courtroom. In the most fascinating section of his book, Spoo describes how a “Joyce gang” consisting of the author, his worshipful admirers, and members of the respectable New York publishing world sought to destroy Roth for his “crime” — which was not in fact a crime — of publishing Ulysses. Unable to file suit against Roth for copyright violation, the author’s legal team (headed by a young associate named Eugene Frederick Roth) counseled him instead to sue the publisher for the unauthorized use of Joyce’s name “for advertising purposes and for the purposes of trade.”

Roth responded that he was making a statement of fact when he said that James Joyce’s works were in Two Worlds Monthly, and it’s hard to dispute that. He was printing Joyce; whether Joyce had given permission was moot. But the “Joyce gang” mobilized a smear campaign that would bring glee to the black heart of Lee Atwater. Employing gossip, backbiting, anti-Semitic slurs, and stories planted in the Paris and New York press, Joyce and his associates turned public opinion against Roth. (Pound, asked to take part in the mudslinging, demurred, concurring that Roth was a perfidious Jew but insisting that the real outrage was American copyright law.) In the end, the two parties settled the case. Joyce did not receive any damages, but Roth was forbidden ever to use Joyce’s name in connection with any of his business ventures. Notwithstanding its equivocal outcome, Spoo concludes, the suit caused Joyce’s “name and fame to overflow any boundaries that could have been secured by legal process” and “indelibly fixed Joyce’s brand of martyred genius.” So-called piracy and the public domain, Spoo argues, advanced Joyce’s fame and the reputation of his novel far beyond what would have been possible had the book been under Joyce’s control.

Roth didn’t disappear, though. Audaciously, although forbidden from having anything to do with Joyce’s works or name, in 1928 he published a forgery of the valuable Shakespeare and Company edition of Ulysses that fooled many purchasers and collectors. Roth appears again in the public eye in the late 1950s, when his challenge to the Comstock Act reached the Supreme Court. He had been convicted of four counts of sending obscene materials through the mail — specifically his magazines Good Times: A Review of the World of Pleasure and American Aphrodite: A Quarterly for the Fancy-Free. Unfortunately for Roth, the court upheld all of the Act’s provisions and consequently Roth served several years in federal prison.

Joyce fared better with the courts. In 1934, US District Court Judge John Woolsey held that Ulysses, although challenging and in parts profane, was legally neither obscene nor pornographic, and thus lifted the de facto ban on the novel that had been in place for 12 years. Immediately, the energetic and publicity-minded publisher Bennett Cerf of Random House, who had initiated the suit, stepped in and published the novel in the US. Given that Ulysses was still — had in fact been for 12 years — in the public domain, one might ask, why did other publishers not rush out their own editions?

Spoo returns here to the idea of trade courtesy. The other respectable New York publishers had all agreed that since Cerf had undertaken the risk of the lawsuit, he was entitled to the spoils of publication. Wary that a renegade publisher might try to undercut him, Cerf prepared an edition that would appear in every way “authorized,” and included Woolsey’s decision, a note by Joyce about the book, and a statement by Joyce and Sylvia Beach that Random House’s was in fact the definitive American edition. If he couldn’t guarantee that he had the only Ulysses, Cerf would boast that he had the best one. (The Ballantine American edition of Tolkien’s Lord of the Rings trilogy was similar; Ace Books contended the books were in the public domain and published them in 1965 at 75¢ apiece, but Tolkien authorized Ballantine’s publication and included a note specifying that “this paperback edition, and no other, has been published with my consent and co-operation. Those who approve of courtesy (at least) to living authors will purchase it, and no other.”) Cerf’s precautions were unnecessary;no other American printings of the novel appeared until the late 1960s, when an edition by “Collectors Publications” of Industry, California, appeared, appending to the text of the novel 43 pages of advertising for such companion titles as Four Way Swappers, Whips Incorporated, and The Incestual Triangle. Random House’s, though, remained the preferred edition for most readers.

Spoo might take some vicarious pleasure in the purported piracy of Joyce, given that he won a rare victory against the Joyce estate and its notoriously close-fisted attitude toward granting permission to artists and scholars to use Joyce’s work. In the 1990s, Spoo taught modernist literature and edited the James Joyce Quarterly at the University of Tulsa, long one of the world’s major centers for Joyce studies. But Joyce’s grandson Stephen’s vindictive stance toward scholars, his routine rejection of any requests for use of the materials he controlled, made new scholarship or creative transformations of the author’s work basically impossible. If the mountain wouldn’t come to Mohammed, Mohammed had to go to the mountain, and so Spoo took a law degree at Yale and clerked for Sonia Sotomayor before starting a practice in copyright and intellectual property law. In 2006, Spoo joined Stanford’s Lawrence Lessig in representing Carol Loeb Shloss, a scholar who had been refused permission to use copyrighted materials in her biography of Joyce’s troubled daughter, Lucia, in her federal suit against the Joyce estate for copyright misuse. In a settlement Schloss prevailed: the estate granted her all of her requests and even paid her legal fees and costs.

In the debates surrounding the 1996 Sonny Bono Copyright Extension Act, Mary Bono (who occupied her late husband’s seat in Congress) demanded a copyright term of “eternity minus one day.” Although her proposal was defeated, recent case law and legislation clearly is trending in favor of rights holders. Spoo is not alone in observing that effective lobbying and public relations by powerful interest groups like the RIAA, MPAA, and AAP are moving public understanding of the purpose of copyright away from “the progress of Science and useful Arts” to the protection of the inherent property entitlements of creators, content providers, and rights holders. Alarmist arguments about the imminent collapse of the content industries are as old as the player piano (which music publishers insisted spelled their doom) and the videocassette player (ditto for the MPAA). Today the threats are different: downloading, The Pirate Bay, BitTorrent, YouTube. The arguments, though, aren’t. Spoo’s book instructively underscores how it has always been thus: 19th-century British authors and publishers swore that the wide-open American public domain would annihilate content provision (to use an anachronistic term), but history has proven them quaintly wrong. A key point of Spoo’s is that community norms such as trade courtesy arise to help institutions cope with existential threats; legislation is not always necessary. I would call readers’ and industry trade groups’ attention to the success of the iTunes Store, Spotify, Netflix, Amazon eBooks, and Rhapsody to reassure them that the sky is not necessarily falling, or at least its collapse is very, very gradual.

Such community-developed norms, though, tend to benefit content providers, not content creators. In the 19th century, British authors undeniably lost out on royalties that should have been theirs, while gentlemen’s agreements maintained stability among publishers. Similarly today, streaming music services and online publications have decimated writers’ and musicians’ incomes, to the degree that the downsized journalist has almost become an American stock character (such as Nick Dunne in Gillian Flynn’s Gone Girl or Rick Redfern in Doonesbury). It was as hard to sympathize with Lars Ulrich’s crusade against Napster as it was to side with Garth Brooks against secondhand record stores, but telling a struggling musician “just make your money playing shows and use recordings as loss leaders” seems not only callous but shortsighted. And more importantly for the health of our democracy, ProPublica and crowdsourcing simply can’t replace the foreign bureaus and investigative reporters that most news outlets used to employ. And even if successful, content providers’ campaign to extend the duration of copyright terms won’t bring those jobs — which have largely disappeared because of the public’s demand for free content — back.

In the big picture, though, Spoo’s book reminds us that private property rights arguments have been winning the day for several decades now, even if their advocates are often less than coherent. In fact, Spoo points out, in 1994 Congress unprecedentedly granted retroactive copyright to foreign works (such as Ulysses) that had “prematurely entered the public domain,” a surprising change of policy nonetheless upheld by the 2012 Supreme Court decision in Golan v. Holder. Recent work by scholars like Lessig, Siva Vaidhyanathan, Patrick Burkart, and Kembrew McLeod has documented how crucial the continually expanding public domain is to the progress of science and art and culture, but increasingly the public and its representatives question whether this “public domain” might be in fact some sort of socialist stalking horse aiming to undermine the inherent sanctity of private property. It is an irony commonly noted that the fiercest and highest-profile American crusader for expanded copyright protection — the Walt Disney Company — is also the most successful and influential exploiter of the public domain in human history, and certainly one would expect a corporation, a machine for making money, to be immune to irony. But as a college professor, watching these young “constitutionalists” and property-defending heirs of Reagan take as natural right their perpetual access to free music, movies, and sources for their research papers, I can’t help but wonder whether our content providers’ chickens haven’t come home to roost. Many of our young, libertarian-leaning voters see the idea of a “public domain” as an unconscionable infringement upon property rights even while assuming that “information wants to be free” — particularly for them — on the internet. But I suppose the ability to live in contradiction without “irritable reaching after fact and reason,” as Keats tells us, is the mark of a great artist.